QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Michalakellis v LMM Holdings Pty Ltd (No. 3) [2021] QIRC 289

PARTIES:	
	Michalakellis, Dimitri
(Complainant)

v

LMM Holdings Pty Ltd 
(First Respondent)

&

Reesby, Grant
(Second Respondent)

&

Gibson, Sam
(Third Respondent)
	
CASE NO.:
	AD/2018/83
	
PROCEEDING:
	Referral of a complaint

DELIVERED ON:
	25 August 2021	
HEARING DATES:
	23 August 2021	
MEMBER:

HEARD AT:	Power IC

Brisbane

ORDERS:
	1.	Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld), the matters predating 15 June 2017 are to be included within the claim. 

2.	Pursuant to s 178 of the Anti-Discrimination Act 1991 (Qld), the claim is amended to include allegations of discrimination pursuant to s 7(a) as outlined in the Complainant's Amended Statement of Facts and Contentions. 
	
CATCHWORDS:	HUMAN RIGHTS – DISCRIMINATION LEGISLATION – anti-discrimination – discrimination in the workplace – time limits on referred complaints – discretion to accept complaints outside time limits – where some complaints were made more than 1 year after the alleged contravention – whether on the balance of fairness it is reasonable to include complaints – relevant considerations 
	
LEGISLATION:

	Anti-Discrimination Act 1991 (Qld), ss 7, 175 and 178	
CASES:	Carlton v Blackwood [2017] ICQ 001

Hopper v Mount Isa Mines Ltd [1998] QSC 287

MM v State of Queensland [2014] QCAT 478

Noble v Whitelock & Ors [2020] QIRC 069

Wong v Medical Board of Queensland & Ors [2006] QADT 41
	
APPEARANCES:	Mr D. Michalakellis, as self-represented Complainant

Ms R. Taylor of Counsel, instructed by Franklin Athanasellis Cullen Lawyers, for the Respondents	

Reasons for Decision

[1]	Mr Dimitri Michalakellis ('the Complainant') filed a complaint with the Anti-Discrimination Commission Queensland ('ADCQ') on 15 June 2018 alleging that he had been the subject of discrimination on the grounds of race and perceived sexuality in the work-related area during the period between January 2016 and April 2018. 

[2]	The ADCQ treated the complaint as alleging the following:

(a)	Race and sexuality discrimination in the area of work – sections 7(g), 7(n), 10, 11 and 15.
(b)	Victimisation – section 129

[3]	The Respondents opposes the acceptance of allegations prior to 15 June 2017 and the ADCQ considered these submissions. The ADCQ determined that the out of time part of the complaint would be accepted. The Queensland Industrial Relations Commission ('QIRC') is not bound by this decision. 

[4]	After a number of interlocutory proceedings, a mention was held on 19 May 2021 during which the Respondents requested further particulars from the Complainant. A Directions Order was subsequently issued, requiring the Complainant to provide an affidavit particularising his complaint. The Complainant filed and served his affidavit on 16 June 2021 ('the Affidavit') annexing an Amended Statement of Facts and Contentions ('Amended SOFC'). 

[5]	The Respondents emailed the QIRC on 12 August 2021, objecting to the out of time parts of the claim being considered and the addition of another attribute being that of 'sex' pursuant to s 7(a) of the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). 

[6]	The first question before the QIRC is whether it should exercise its discretion under s 175 of the AD Act to deal with the out of time complaints. Section 175 provides:

175 	Time limit on referred complaints

(1)	The tribunal must accept a complaint that is referred to it by the commissioner, unless the complaint was made to the commissioner more than 1 year after the alleged contravention of the Act.

(2)	If the complaint was made more than 1 year after the alleged contravention, the tribunal may deal with the complaint if the tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.

[7]	The parties do not dispute that the elements of the complaint that are out of time relate to the events which are said to have occurred one year prior to the complaint being filed, namely, the period prior to 15 June 2017. 

[8]	The AD Act provides the QIRC with the power to determine whether it will deal with a complaint made more than one year after the alleged contravention of the AD Act if it is reasonable to do so on the balance of fairness between the parties. 

[9]	The onus of satisfying the QIRC to exercise its discretion and provide an extension of time lies with the Complainant. 

[10]	With respect to the QIRC's discretion, the court said in Wong v Medical Board of Queensland & Ors:

The Tribunal is bound to exercise its own discretion, pursuant to s.174(2) of the Act. In exercising this discretion, the Tribunal is not bound by the decision made by the Commissioner.

[11]	In determining whether grounds exist to exercise the discretion under s 175(2) of the AD Act in favour of the Complainant, the relevant considerations are as follows:

(a)	The length of the delay;

(b)	any explanation by the Complainant for the delay;

(c)	any prejudice to the Respondent, should the discretion be exercised in the Complainant's favour;

(d)	any prejudice to the Complainant, should the discretion not be exercised in the Complainant's favour; and

(e)	whether there is a lack of merit to the complaint.

Length of delay

[12]	The alleged conduct is said to have occurred between January 2016 and April 2018. The length of time between the first alleged contravention and the filing of the complaint is some 17 months. 

[13]	The Complainant submits that nearly all of the allegations were continuing in nature. As alleged in the Amended SOFC, the allegations that Mr Grant Reesby ('the Second Respondent') referred to him as 'fairy features', 'poof', 'homo', 'faggot' and 'paint poof' is submitted to have occurred repeatedly and regularly between January 2016 and April 2018.
 
[14]	The Respondents submit that through no fault of their own, the Respondents were not apprised of the out of time complaints until five and a half years after the first conduct was said to have occurred. 

Explanation for delay

[15]	The Complainant submits that it is not reasonable to expect that he could have made a complaint to the ADCQ against the Second Respondent during the time when he was continuing to perform work for him and trying his best to appease him. 

[16]	The Complainant submits that in January 2018 his wife made an anonymous complaint to a Senior Manager for LMM Holdings Pty Ltd ('the First Respondent') after he confided to her the severity of his mental health issues and that he was suffering as a result of how the Second Respondent had allegedly treated the Complainant during the time he performed work for Brisbane BMW. The Complainant submits that he 'was so broken' by that time he could not have made his own internal complaint against the Second Respondent, let alone a complaint to the ADCQ and continue to perform work at his direction. 

[17]	The Complainant submits that from approximately June to December 2017, he experienced suicidal ideation; on 5 December 2017, he was diagnosed as suffering from anxiety; he has been certified as unfit for work since 13 April 2018; he has experienced a number of mental health concerns at the time of lodgement of the complaint, including depressed mood, heightened anxiety, insomnia and social withdrawal and isolation. 

[18]	The Complainant refers to the decision in Hopper v Mount Isa Mines Ltd ('Hopper'), and likens his circumstances to that of the complainant in that matter. The Complainant submits that it was reasonable that he made no complaint to the ADCQ until he ceased working under the Second Respondent's direction in April 2018.

[19]	The Complainant submits that he did not sleep on his rights and promptly retained lawyers who lodged a complaint in the Fair Work Commission and, shortly thereafter, in the ADCQ. 

[20]	The Respondents submit that while the Complainant may contend that he did not complain earlier for fear of it impacting the work allocated to him, as a contractor, the Complainant was at liberty to source work from another principal. The Respondent contends that the Complainant's desire not to frustrate the relationship with the First Respondent is not a reasonable cause for the delay.

[21]	The Respondents also submit that there is no evidence that the Complainant's psychological injury prevented him from making his complaint in time.

Prejudice

[22]	The Complainant refers to the ADCQ decision to accept his out of time allegations of discrimination which concluded that the Complainant was likely to experience prejudice if the out of time aspects of the complaints are not accepted because the complainant asserts that there was a pattern of unlawful treatment. The decision continues:

To not accept the out of time aspects of the complaint would not prevent you from relying on some of the allegations a background material, but it may impact on the potential outcome of a QIRC order. 

[23]	The Complainant submits that if his out of time allegations were not included in his complaint, he would still be entitled to give evidence about them as background material and that this would make little sense given the allegations refer to a course of action. The Complainant notes that it would be nearly impossible for the QIRC to separate out the allegations against the Second Respondent's conduct in 2017 from that of 2017 when determining non-economic damages. 

[24]	The Respondents submit that most of the complaints are in-time, and as such if the out of time complaints are not accepted, the Complainant will still be able to proceed with his in-time complaints, suffering minimal prejudice. 

[25]	The Complainant submits that it would be disingenuous for the Respondents to argue that they would be prejudiced by the passage of time that pre-dated when the Complainant lodged his complaint when, because of a number of legal applications that have been filed over the last three years, a hearing on the merits has been delayed. 

[26]	The Respondents submissions that the length of the delay is prejudicial to the Respondents can be summarised as follows:

•	While there may be a continuum of events between the complaints, this does not outweigh the disadvantage faced by the Respondents in trying to defend alleged conduct after such a significant time has passed;

•	prior to the filing of the Affidavit, there was no case capable of being defended by the Respondents;

•	the alleged contraventions are still not sufficiently particularised, with the example being the allegation the Second Respondent called the Complainant a 'cockroach'. This causes significant prejudice to the Respondents;

•	the introduction of completely new, out of time complaints cause the Respondents to be unquestionably prejudiced and unfairly disadvantaged in these proceedings;
 
•	the burden on the Respondents is already high in refuting the in-time allegations. All the complaints will have to be responded to and the hearing is likely to be factually complex and costly to run;

•	the delay in making his complaint has caused such prejudice to the Respondents that they will not be able to respond adequately to the out of time allegations. It will be difficult for the Respondents to identify potential witnesses and the fading of memories may render the witnesses of little assistance in determining the truth of the allegations; and

•	the out of time complaints are also new and were not considered during any of the critical pre-trial procedures such as outlines of evidence or discovery. If any extension for time is granted, the Respondents will have been denied the benefit of these procedures and will be forced to revise their preparation for the trial.

Merit to the complaint

[27]	The Complainant submits that the out of time allegations are the same as his timely allegations and notes that the ADCQ considered that, if proven, those allegations amount to unlawful discrimination. 

[28]	The Complainant contends that if the Respondents believed the allegations were frivolous or vexatious, they would have sought to strike out his complaint in its entirety early in these proceedings. 

Consideration 

[29]	The Complainant filed his complaint in the ADCQ on 15 June 2018 and, in accordance with the statutory one year time limitation, any incidents alleged to have occurred prior to 15 June 2017 are out of time. The allegations against the conduct of the Second Respondent date from January 2016, with these allegations up to 17 months outside the time period. 

[30]	The QIRC may deal with complaints made more than one year after the alleged contravention of the AD Act if it considers, on the balance of fairness between the parties, it would be reasonable to do so. 

[31]	The Complainant alleges a pattern of behaviour commencing in January 2016 and continuing until he ended his employment in April 2018. As in the case of Noble v Whitelock & Ors, this is not a case where there has been a failure by the Complainant to commence proceedings within time. The circumstances in this matter are a complaint in which some elements are out of time and others are within time. 

[32]	As determined in Hopper, the correct approach is not to examine each alleged incident or episode in isolation when the allegations are of conduct continuing in nature. 

[33]	The length of the delay at its longest is 17 months. Whilst this is not an insubstantial amount of time, it is not so lengthy as to be prohibitive in terms of accessing relevant evidence. This is particularly so given that the out of time allegations refer to the same person, being the Second Respondent, as the in-time allegations.

[34]	The explanation given for the delay by the Complainant is that he had suffered significant psychological symptoms during this period. The Complainant also submits that he feared losing work if he complained about the Second Respondent's conduct. 

[35]	The Complainant submits that he acted on his concerns by making an internal complaint, albeit from his wife, in the hope that the matters could be resolved prior to commencing proceedings in the Fair Work Commission and the ADCQ. I consider that the Complainant has provided a reasonable explanation for the delay.

[36]	I accept that the Respondents will suffer prejudice if the out of time matters are accepted simply from the passage of time. However, I am of the view that the prejudice is not significant in that the same parties are involved in both the in time and out of time allegations. As in Hopper, the Respondents are able to call the Second Respondent, who is the subject of the out of time allegations, and so are unlikely to suffer significant disadvantage. I also note that the Respondents have been made aware of some of the out of time allegations through documents filed in the Fair Work Commission. In my view, the Complainant will suffer prejudice if the out of time matters are excluded as he will be prevented from relying upon such matters to establish a pattern of conduct. 

[37]	I note the Respondents' submissions with respect to 'new' out of time complaints. These 'new' allegations are, in many ways, the more particularised details that the Respondents sought from the Complainant at the mention on 19 May 2021. Again, they involve alleged interactions between the Complainant and the Second Respondent and so, consideration of these allegations will not be significantly prejudicial. I do not consider that the Respondents is unreasonably prejudiced by acceptance of these matters, particularly after having been made aware of the allegations in 16 June 2021 when the Amended SOFC was filed. 

[38]	I consider the issue of merit to be neutral in this matter as I am yet to hear evidence from either parties' witnesses. 

[39]	Having considered the matters outlined in s 175(2) of the AD Act, on the balance of fairness, it is reasonable to permit the conduct alleged to have occurred prior to 15 June 2017 to be included in the claim. 

[40]	The second issue to be considered relates to the addition of another attribute in the Complainant's Amended SOFC. The Complainant states in his Amended SOFC, annexed to the Affidavit, that the Second Respondent treated him less favourably than female contractors and employees who worked at Brisbane BMW by exposing him to offensive and demeaning 'banter among male colleagues' to which he would not have exposed female workers. The Complainant contends that he has been treated less favourably because of his sex, which is a protected attributed pursuant to s 7(a) of the AD Act. 

[41]	The Respondents submit that the QIRC lacks the jurisdiction to deal with the complaint alleging sex discrimination. 

[42]	I refer to the decision of Member Roney in MM v State of Queensland, in which Member Roney states:

In my view it is clear that the amendments which were made to s 178 were facilitative, established in the Tribunal an unfettered discretionary power to allow an amendment to raise a matter notwithstanding that it was not included in the original complaint, and expected this Tribunal to exercise that power in ways which, inter alia, facilitated the just and expeditious hearing of the matters in dispute, to minimise inconvenience and cost associated with that process, and to avoid unnecessary technicality and formality in this process. 

[43]	I note the Respondents' submissions that the addition of this new attribute prejudices their ability to respond on the basis that it has not been raised prior to 16 June 2021. I acknowledge that this attribute had not been previously raised, however, also note that it has been raised by the Appellant on the basis of an explanation of particular behaviour by the Respondents. The Respondents referred the QIRC to Carlton v Blackwood ('Carlton'), in which President Martin stated that the QIRC cannot allow a case to 'evolve' and if an appellant wishes to advance a different case, this should be done by seeking an amendment to the document identifying the facts and contentions. 

[44]	Although Carlton was an appeal pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the principle with respect to defining the scope of action can be applied in this matter. In applying this principle, I accept that the Complainant's Amended SOFC filed on 16 June 2021 included the relevant amendment by outlining the contention that he had been treated less favourably on the basis of sex in paragraph [48]. I accept that the original complaint was not characterised as including this attribute, however, as previously noted, the QIRC is not bound by the characterisation of the ADCQ and is empowered by s 178 to amend a complaint. The inclusion of a further attribute has not introduced new allegations or further facts, and to deny the Complainant the ability to assert that the same facts and contentions may have breached another section of the AD Act would be unreasonable. In accordance with s 178 of the AD Act, I will allow the complaint to be amended to include the attribute outlined in s 7(a). The case to be answered will not be allowed to 'evolve' at hearing without leave of the Commission, with the Complainant's Amended SOFC now encompassing his case.

Order

[45]	I make the following orders:

1.	Pursuant to s 175(2) of the Anti-Discrimination Act 1991 (Qld), the matters predating 15 June 2017 are to be included within the claim. 

2.	Pursuant to s 178 of the Anti-Discrimination Act 1991 (Qld), the claim is amended to include allegations of discrimination pursuant to s 7(a) as outlined in the Complainant's Amended Statement of Facts and Contentions.